CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 26353/95                       by E. J.                       against Germany           The European Commission of Human Rights (First Chamber) sitting in private on 3 December 1997, the following members being present:              Mrs    J. LIDDY, President            MM     M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              Mrs    M.F. BUQUICCHIO, Secretary to the Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 10 October 1994 by E. J. against Germany and registered on 30 January 1995 under file No. 26353/95;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:     THE FACTS         The applicant, a German citizen born in 1934, is a car mechanic residing in Giessen in Germany.   Before the Commission he is represented by Mr T. Döhmer, a lawyer practising in Giessen.         The facts of the case, as submitted by the applicant, may be summarised as follows.         In 1962 the Kassel Regional Court (Landgericht) convicted the applicant of having committed bodily injury.   In view of a medical expert opinion, which found that the applicant suffered from schizophrenia, the Court ordered his detention in a psychiatric hospital.         The detention was suspended on probation in 1971.   The applicant was ordered to live in an open house belonging to the hospital and regularly to take neuroleptic medication.   From 1972 until 1973 he was again detained whereupon the conditions of detention were gradually relaxed.   From 1980 to 1981 he was detained.   As from 1982 he was allowed to leave the hospital to visit the town.   When during this time the applicant's medication was occasionally reduced, he   suffered mental alienations (Wahnvorstellungen).         In 1984 the applicant was observed at the hospital during a period of three months.   A medical opinion prepared by two medical specialists concluded as a result that the applicant suffered from schizophrenia which could nevertheless be alleviated by medication.         As from 1985 he lived in a home of the hospital.   In 1987 medication was stopped temporarily whereupon his mental situation deteriorated.         In 1989 the applicant's suspended detention on probation was revoked and he was placed in psychiatric detention from which he was released on 15 October 1993.         On 21 December 1993 the Marburg Regional Court ordered the applicant's continuing psychiatric detention, as he had to be protected from committing acts amounting to criminal offences.         In a separate decision of the same day, the Court also refused the applicant's request not to be treated with medication.   The Court referred to the psychiatric hospital's conclusions according to which the applicant suffered from paranoid schizophrenia leading to a change of his perception of the interior and exterior situation and bringing about fear and persecution paranoia.   While the medication could not actually cure the applicant, it alleviated his psychotic experiences (psychotisches Erleben).   To the extent that the applicant did not agree to medication, the Court relied on S. 7 of the Hessen Act on the Enforcement of Preventive Measures (Massregelvollzugsgesetz) which envisages medical treatment against the will of a person.   The Court considered that the applicant's medication actually enabled an amelioration of his situation permitting his release from hospital.         A further medical opinion of 3 February 1994 concluded that, while the applicant continued to suffer from chronic schizophrenia, he could be released from psychiatric detention, though he would continue to require medication.           On 21 March 1994 the Marburg Regional Court suspended the applicant's psychiatric detention on probation and placed the applicant under curatorship (Führungsaufsicht) for a period of five years.   With reference to the previous decisions the applicant was ordered regularly to obtain medication at the psychiatric hospital.         The applicant's appeal was dismissed by the Frankfurt Court of Appeal (Oberlandesgericht) on 21 June 1994 which found that it could only examine the lawfulness of the contested decision, and that in the given case the contested decision of 21 March 1994 did not disclose any legal errors (Rechtsfehler).         The applicant's constitutional complaint (Verfassungsbeschwerde), in which he complained about a breach of the principle of proportionality, was dismissed by the Federal Constitutional Court (Bundesverfassungsgericht) on 13 September 1994.         On 11 October 1994 the Kassel Regional Court dismissed the applicant's request for compensation for having spent 32 years in a psychiatric hospital.     COMPLAINTS         The applicant complains of the unduly long period of enforcement of preventive measures (Massregelvollzug) which amounted to inhuman and degrading punishment and treatment contrary to Article 3 of the Convention.   In respect of the medication which he is obliged to take and which, in his view, is not indicated in his case, he also raises complaints under Articles 8 and 9 of the Convention.         Under Article 5 para. 1 of the Convention the applicant, who directs his application against the decision of the Marburg Regional Court of 21 March 1994, complains of deprivation of liberty lasting more than 30 years.     THE LAW   1.     The applicant complains under Articles 3, 8 and 9 (Art. 3, 8, 9) of the unduly long enforcement of preventive measures and in particular of the medication which he is obliged to take.         The Commission has examined these complaints under Article 3 (Art. 3) of the Convention (see Eur. Court HR, Herzegfalvy v. Austria judgment of 24 September 1992, Series A no. 244, p. 26, para. 86). This provision states:         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."         According to the Convention organs' case-law, ill-treatment must attain a certain level of severity if it is to fall within the scope of Article 3 (Art. 3).   The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (Eur. Court HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 65 et seq., paras. 162 et seq.).         The Commission furthermore recalls that, as a general rule, a measure which is a therapeutic necessity, cannot be regarded as inhuman or degrading.   The Convention organs must nevertheless satisfy themselves that the medical necessity has been convincingly established (see Eur. Court HR, Herzcegfalvy v. Austria judgment, op. cit., p. 26, para. 82).         In the present case, the Commission notes, on the one hand, that the domestic authorities, in particular the Marburg Regional Court in its decisions of 21 December 1993 and 21 March 1994, relied on S. 7 of the Hessen Act on the Enforcement of Preventive Measures which envisages medical treatment against the will of a person.         On the other hand, the domestic authorities carefully balanced the different interests at stake.   Based on various medical expert opinions it was considered that the applicant suffered from chronic schizophrenia which was alleviated by medication.   The authorities carefully monitored the applicant's situation and, as a result, either placed him in psychiatric detention when it was necessary to protect him, or released him whereby he occasionally lived in houses belonging to the psychiatric hospital.   In its decisions of 21 December 1993 and 21 March 1994 the Marburg Regional Court found that the medication at issue enabled an amelioration of the applicant's situation in that it protected him from committing criminal acts and eventually permitted his release from detention.         In these circumstances, the Commission finds that the treatment complained of does not fall within the scope of treatment prohibited by Article 3 (Art. 3) of the Convention.         This part of the application is, therefore, manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant complains under Article 5 para. 1 (Art. 5-1) of the Convention of deprivation of liberty lasting more than 30 years.         The Commission observes that on 21 March 1994 the Marburg Regional Court in fact released the applicant from psychiatric detention.         Insofar as the applicant is complaining of the previous decisions which ordered his detention in a psychiatric hospital, he has not shown that he appealed against the various decisions and, in last resort, filed a constitutional complaint with the Federal Constitutional Court.         In this respect, the applicant has not complied with the requirement as to the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   The remainder of the application must, therefore, be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber